The Miller Test and the Value of Obscene Speech – by “Zachary B – YLT2012”

The Miller Test for Obscenity, and Strict Scrutiny

Obscene speech holds an unusual place in constitutional law. It is the only speech that the Court hasn’t granted First Amendment protections that does not harm individuals (1). Typically, restrictions on speech must pass strict scrutiny, which requires the government to prove a compelling governmental interest (such as the protection of national security) in the regulation of speech, but there is no such high bar for bans on obscene speech. Rather, the legislature is allowed to ban obscene speech simply because doing so protects “a social interest in order and morality” (2). However, the power to regulate speech must only be used against speech which complies with the Miller Test for obscenity established in Miller v. California. As defined in that case, obscene speech is speech that meets a particular three-prong standard. That standard is:

  1. The average person, applying contemporary community standards would find that such speech, taken as a whole, appeals to the prurient interest (i.e. a morbid or degrading interest in sexual activity, as opposed to simply a curious interest).
  2. The speech depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  3. The speech, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(WARNING: Con Law Terms Appear!)
I want to question the unique position of obscene speech in American law. My position is not that obscene speech should never be banned, but that it should be entitled to the same protection as most other forms of expression under the First Amendment. Speech that is protected under the First Amendment cannot typically be banned on account of its content unless the government can meet the difficult standard of strict scrutiny, which is the standard usually used when the government is restricting the exercise of a fundamental right. That standard states that the government cannot restrict or ban speech based purely on its content unless:
  1. The restriction or ban is justified by a compelling governmental interest.
  2. The law is narrowly tailored to achieve that interest (i.e. the law is not overbroad).
  3. The law is the least restrictive means capable of achieving that interest (i.e. there is no  law that would achieve the interest which would allow for more rights to be protected)
Without getting into the nitty-gritty details between the comparative applications of each law, the precise definitions of particular terms, and the history of how each have been used, it isn’t easy to see exactly what the differences between the two are. Fortunately, there’s an intuitive explanation…
How Scalia Looks While Applying the Miller Test           … While Applying Strict Scrutiny



Strict scrutiny is much harder to pass, which is why bans on hate speech, requirements for Boy Scouts to include gays, and quota-based affirmative action have all been deemed unconstitutional. Some legal scholars say that strict scrutiny is ‘strict in theory, fatal in fact’ because of how hard it is to pass. However, I think that the main reasons for the use of strict scrutiny over the Miller test are actually not grounded in how much more difficult it is to pass, but problems with the idea of obscenity as a separate form of speech, and the special rules which are applied in the Miller test.

Problem 1:  What are Contemporary Community Standards?

Unlike in 1973, it is now quite easy to broadcast speech over large areas using few resources (I’m doing so now!). If I were to post an obscene picture like the one below, what community standards would regulate it?

Just kidding, folks

The community to which I belong and to which I’m addressing my message is quite different from the community of individuals who could possibly view it. This issue became clear in United States v. Extreme Associates (3), when a porn producer in California was charged with violating obscenity laws in Pennsylvania because officers were able to download it in that area. The court subsequently applied the community standards they were familiar with. This standard, if upheld, would lead to the law being applied with the community standards of the most conservative areas of the nation, because police departments and prosecutors could selectively apply the community standards of a particular area at a national level since content providers can’t easily stop their broadcasts at state lines.

Problem 2: What is ‘Value’, and Why Are We OK with Courts Deciding It?

The central concept enshrined in the third prong of the Miller test is that speech would not be obscene if it has some value. This conception of free speech is quite dangerous, because it contains within it an instrumental view of speech. Rather than seeing speech, even speech that is objectionable, as being inherently valuable, it views speech as just being instrumentally valuable to other goals, like  literature, the arts, politics, or the sciences. Speech certainly is valuable to those endeavors in many cases, but even when it is not, it still serves social values. If speech that is considered obscene was entirely valueless, why would people produce it, own it, or view it? The response of the court is that those people only view it because of a prurient interest. Here is the philosophical issue though, if the courts or the legislature has the power to decide what speech is valuable and what speech is not, rather than citizens, why aren’t larger bans on ‘value-less’ speech permissible? The Miller test opens the door for the government to deem speech value-less and then ban it because it upsets some people. Finally, this is simply inconsistent with the court’s existing philosophy on speech: What value does hate speech have? Why then, given that it is value-less and upsetting to some, is it protected?

Problem 3: What is Obscenity? Problems with Vagueness

The overarching problem with the Miller test, however, lies in the debate about value and community standards. When the laws regarding obscenity are unclear, and the courts are unclear about whether or not the laws are constitutional, legitimate speech is chilled. Content producers will be hesitant to publish works which have only questionable value, because they want to avoid litigation. They will ensure that there works are consistent with the community standards of decency established in the most conservative areas of the country, rather than their intended audience or the nation as a whole, because they could be prosecuted, and even jailed, by courts in those conservative districts. The ultimate result of the Miller test is the elimination of not only obscenity, but much legitimate speech.

The Application of Strict Scrutiny

The application of strict scrutiny to these issues would solve these problems. Strict scrutiny requires that laws be specific and narrowly tailored so that legitimate speech is curtailed as little as possible. It also requires that true compelling interests be used to justify restrictions on speech. In some cases, such interests may exist to prevent actual harm to others, but a presumption that such an interest is always present with speech that is offensive or disturbing to some is not justified by constitutional theory or even basic reflection. Finally, strict scrutiny would require that laws be least-restrictive, giving content producers enough leeway to continue operating with borderline speech. Ultimately,  there is no compelling reason to treat obscene speech as different from any other kind of speech when it comes to the constitutionality of restrictions or bans, so why should it hold such a unique place in constitutional law.

References and Further Readings

  1. Freedom of Speech and Press: Exceptions to the First Amendment, by Henry Cohen
  2. Roth v. United States, Majority Opinion, by Justice William Brennan
  3. United States v. Extreme Associates


2 thoughts on “The Miller Test and the Value of Obscene Speech – by “Zachary B – YLT2012”

  1. I agree with your suggestion that strict scrutiny should be used in place of the Miller Test for matters of obscenity. Even if one tries to make a morality argument about why obscenity should be banned (i.e. claiming a general degradation of society), I don’t see why obscenity should be approached differently from violence, vulgarity, mindless content, etc. I believe that the special exception made for obscenity is representative of a different set of values and social norms that are no longer relevant.


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